Ballman v. Duffecy
| Decision Date | 07 January 1952 |
| Docket Number | No. 28799,28799 |
| Citation | 102 N.E.2d 646,230 Ind. 220 |
| Parties | BALLMAN et al. v. DUFFECY et al. |
| Court | Indiana Supreme Court |
Arthur J. Sullivan, James C. Jay, Indianapolis, Frederick E. Schortemeier, Indianapolis, of counsel, for appellants.
Leo M. Gardner, Indianapolis, for Michael J. Duffecy and Josephine D. Duffecy.
Edward H. Knight, Corp. Counsel, Michael B. Reddington, City Atty. and Adolph G. Emhardt, Asst. City Atty., Indianapolis, for Members of Board of Zoning Appeals and for City of Indianapolis, a municipal corporation.
JASPER Judge.
This is an appeal from a judgment dismissing a petition for a writ of certiorari to review a decision of the Board of Zoning Appeals of the City of Indianapolis. A variance had been granted by the Board of Zoning Appeals. Appellants filed their petition for a writ of certiorari to review the decision, pursuant to §§ 53-783, 53-784, and 53-785, Burns' 1951 Replacement. Appellees entered a special appearance and filed a motion to dismiss the petition for a writ of certiorari, contending that the statutory jurisdiction of the trial court to hear and decide the controversy presented by the petition for a writ of certiorari filed by appellants had not been invoked within the time provided by the statute. The trial court entered judgment dismissing the petition for a writ of certiorari and taxing the costs against petitioners.
Appellants contend that it was error for the trial court to sustain appellees' motion to dismiss appellants' petition.
The procedure for the review of a decision of a board of zoning appeals is statutory.
The pertinent part of § 53-783, Burns' 1951 Replacement, 1 is follows:
'Every decision of the board of zoning appeals shall be subject to review by certiorari.
The pertinent part of § 53-784, Burns' 1951 Replacement, is as follows:
'On filing a petition for a writ of certiorari with the clerk of the circuit or superior court of the county in which the premises affected are situated, the petitioner shall cause a notice to be issued and served by the sheriff of the county upon the adverse party or parties, if any, as shown by the record of the appeal in the office of the board of zoning appeals. * * *
'The notice shall state that a petition for a writ of certiorari has been filed in the circuit or superior court of the county, as the case may be, asking for a review of the decision of the board of zoning appeals, designating the premises affected and the date of the decision and the time fixed for the return of the writ of certiorari by the board of zoning appeals.
'The service of the writ of certiorari by the sheriff on the chairman or secretary of the board of zoning appeals shall constitute notice to the board and to the city or any official or board thereof charged with the enforcement of the zoning ordinance, and no further summons or notice with reference to the filing of such petition shall be necessary.'
Section 53-785, Burns' 1951 Replacement, provides as follows:
It was for failure of appellants to comply with the last-cited sections of the statute that the trial court entered its finding and judgment dismissing the petition for a writ of certiorari. The pertinent part of such finding and judgment is as follows:
'* * * now finds from its records that said petition for writ of certiorari was filed in the office of the clerk of this court on January 9, 1951, which was within thirty days after the entry of the decision complained of therein; that this court did not enter any order whatsoever in this review proceeding nor issue a writ of certiorari or fix a time for the return thereof, nor was any writ of certiorari nor rule to show cause served upon defendant, Board of Zoning Appeals, or City within said thirty days nor within fifty days, after the entry of the decision complained of nor has it been requested to enter any order or issue any such writ; that no such notice as required by the applicable statute was given defendants who have filed herein their motions to dismiss said petition for writ of certiorari of any time fixed by this court for the return to any such writ or to show cause and that the purported notice given was defective; that there was served on all defendants a summons by the sheriff and in addition by stipulation of counsel in open court it appeared that there was served on all defendants by the sheriff the following notice:
"You are hereby notified that a Petition for Writ of Certiorari has been filed in the Superior Court of Marion County asking for a review of the decision of the Board of Zoning Appeals granting a variance for the premises known and designated as 735 E. Maple Road and 3740-44-50 Carrollton Avenue, Indianapolis, Indiana, December 11, 1950, which said Petition for variance was filed by Michael J. Duffecy and is known as File No. 535V50 before the Board of Zoning Appeals in the City of Indianapolis. The time fixed for the return of this writ is February 8, 1951.
'/s/ James C. Jay
'James C. Jay
'/s/ Arthur J. Sullivan
'Arthur J. Sullivan
'Attorneys for Plaintiffs'
that said motions of defendants, other than those who have filed their disclaimer herein, to dismiss petitioners' said petition for writ of certiorari filed herein should be sustained.
'It Is, Therefore, Ordered, Adjudged and Decreed by the court that the jurisdiction of this court to review the proceedings complained of by petitioners in their said petition for writ of certiorari has not been invoked in the manner nor within the time allowed by law and that this court does not have and cannot now obtain jurisdiction of the persons of the defendants, other than those who have filed their disclaimer herein, for the purpose of reviewing the decision complained of.
'It Is Further Ordered, Adjudged and Decreed by the court that the motion of the defendant, Board of Zoning Appeals of the City of Indianapolis, and of the individual members thereof, as such members, and of the City of Indianapolis, to dismiss petitioners' said petition for a writ of certiorari be and the same hereby is sustained and petitioners' said petition for a writ of certiorari,...
To continue reading
Request your trial
-
Harp v. Indiana Dept. of Highways
...533, 536 (citing Monon R.R. Co. v. Citizens of Sherwood Forest Addition (1970), 146 Ind.App. 620, 257 N.E.2d 846; Ballman v. Duffecy (1952), 230 Ind. 220, 102 N.E.2d 646). In Indiana, one who seeks the benefit of a purely statutory procedure must bring himself strictly within the terms of t......
-
Public Service Commission v. City of Indianapolis
...of fact or expert judgment or discretion. In some jurisdictions the writ of certiorari performs this function. Ballman v. Duffecy, 1952, 230 Ind. 220, 102 N.E.2d 646; Staten Island Edison Corp. v. Maltbie, 1947, 296 N.Y. 374, 73 N.E.2d 705, 8 A.L.R.2d 825; 73 C.J.S., Public Administrative §......
-
Monon R. Co. v. Citizens of Sherwood Forest Addition, Marion County, 1268A218
...1951, 229 Ind. 596, 99 N.E.2d 839; Davis v. Pelley, 1952, 230 Ind. 248, 102 N.E.2d 910.' In the case of Ballman v. Duffecy (1952), 230 Ind. 220, 229, 102 N.E.2d 646, 650, our Supreme Court stated as 'This court has held that the inherent right to a review of an order of an administrative bo......
-
Demma v. Forbes Lumber Co.
...268; State ex rel. Mid-West Ins. Co. v. Superior Court of Marion County, 1952, 231 Ind. 94, 100, 106 N.E.2d 924; Bailman v. Duffecy, 1952, 230 Ind. 220, 228, 102 N.E.2d 646; Wedmore v. State, 1954, 233 Ind. 545, 549, 122 N.E.2d 1.' The foregoing rule also applies to the foreclosure of mecha......